131 F. 62 | 2d Cir. | 1904
The controlling question in the case is whether or not the steamer was substantially in motion. The district judge found that, although probably still forging ahead very slightly, and drifting up a little with the flood tide, she was almost, if not quite, at a standstill, preparing to anchor, and not under way. He heard some of the important witnesses, and there is no evidence presented sufficient to warrant a reversal of that finding. The witnesses for the steamer testify that she was not in motion. The respondent’s witnesses testified that when they first saw her she was apparently at anchor, and, although subsequently they state she was in motion, they yet admit that they did not see her moving through the water, and apparently infer merely that she must have been in motion because collision ensued. The steamer was practically a vessel not under way, was seen to be such by the navigators of the tug, and was so seen at a distance amply sufficient to enable the latter to avoid collision, had they not undertaken to shave too close.
The decree is affirmed, with interest and costs.
